Author : Bhanu Pratap Singh Rathore, Student at Manipal University, Jaipur.
Co-Author : Jahnvi Bhala, Student at Manipal University, Jaipur.
International law and its evasion or bad faith compliance and violation by hegemonic countries isn’t a new concept. there is no denying the fact that there have been some general difficulties associated with applying international law in the real world. Unipolarity in international politics and international law are often considered incongruous. As we all know we are living in a unipolar world, in which the United States is dominant in international politics. in this article we are going to discuss how a hegemonic country like the United States easily violates and evades international law without any consequences, with a particular focus on Bush administration’s policy (after 9/11 attacks) against the terrorists and their global network and the legality of 2003 war on Iraq and undermining the rules against torture. It is a well-established fact that the US is an undependable and untrustworthy international partner, its history of signing but not ratifying or backing off from the signed treaties and sometimes even not signing but forcing other countries to sign has made the US an unreliable ally. Complete disregard of international law and violation of treaties by the US and other hegemonies questions the credibility of international law and make other countries think that why they should follow the treaties when countries like US, UK, Australia, etc. are breaking them with impunity .”When there is neither community of interests nor balance of power, there is no international law”(Morgenthau, 1904).
Keywords: Violation, Evasion, International Law, Unipolarity, Hegemonies, etc.
The political dominance of a single country or a few countries over other nations is a threat to international law. Hegemonic countries mostly are disinclined to adhere to norms and follow the laws of international community. International norms are mostly in need of strength to impose its laws, international law appears to be powerless in such circumstances and lacks in making robust countries to abide by the laws. Hegemonic countries find international law “overly constraining, and turn to politics instead (Schmitt, 1933)”. The concept of inclining towards politics rather than using international law is in practice since the epoch of the harmony of Europe in the 19th century. Concert used to apply political means rather than legal in its interaction with other weaker states. The similar policy is generally used to elucidate chaotic interrelation betwixt international law and America. The US unwillingness to sign conventions and treaties and ‘thumbing their nose towards international law’ attitude, makes them appears as a lawless hegemon (Krisch, 2005).
It is important to understand the serpentine ways in which hegemonic nations come in contact and the way they mold international law and their stand towards treaties and conventions with other weak countries. International law can be used as an instrument of power by such powerful countries to bend other countries at their will. “They use it as a means of regulation as well as of pacification and stabilization of their dominance (Krisch, 2005)”. Moreover, using their influence in international politics they make the provisions of treaties such as that they favor their interest and make other countries sign them. The policies of hegemonic states on international law are based on two main pillars; instrumentalization and withdrawal. Yes, dominating states had indeed been the main contributor in the burgeoning and expansion of international law, but these states have also used it to a stronghold, improve and stabilize their position in international politics. Trade and economic policies are the main reason for US interaction with international community and the international maritime law. “Post-world war, the US had the most involvement in making international law and international institutions which can be explained by its desire to stabilize a favorable world order in the face of an unexpected decline (Krisch, 2005)”. The US, after the cold war between US and the Soviet Union come to an end and the Soviet Union disintegrated, the United States became the world’s only superpower and its view since then towards international law is of mixed and contradictory nature. The biggest discrepancy is in the rhetoric version of the US, where they emphasize the importance of international law in keeping world peace and bringing stabilization in the world, and on other hand, they often violate and have total disregard for the most basic principles of international law (Frappier, 2020). The US has endorsed several important international legislative initiatives, such as the WTO (World Health Organization), the ICJ (International Criminal Court), or the burgeoning of the Non-Proliferation Treaty. But the US kept a cynical approach to international organizations as a whole and has fallen behind in the ratification of international treaties as compared to other countries.
INTERNATIONAL LAW AND HEGEMONIES
Even as they were molding global law as indicated by their views, predominant powers have continually conjointly the withdrawal tendencies toward the treaties: to limit it in a way that minimizes its restraining effect or to evade it by using the loopholes in the treaties. This ought to be mirrored principally in infringement of international law, yet it’s hard to explain it as a violation of international law because the powerful countries avoid and not follow them by using the flaws and ambiguities in the treaties and defeating the main purpose of such treaty by evading it, principally because it appears to be methodologically hard to make any solid articulation about how much a nation abuses international norms and the degree to which these infringements surpass those of remaining nations. Backing off from international law need not appear as infringement: they can also include attempts to exempt oneself from obligations undertaken by others; at eliminating certain connections across the circle of global law; or at withdrawing back from international legitimate commitments in various regions. There are some states in which democracy has failed, there is a dictatorship and there is a violation of human rights and such states are categorized as outlaw states and have limited rights under international law, and does not have much shielding from foreign or global intervention. Having basic human rights and proper functioning government or democracy are some conditions to have legit representation in the global community and protection from intervention and intrusion from other countries. US has created a legal framework for ‘rogue countries’ which are allegedly spreading and supporting terrorism and developing WMD’s (weapons of mass destruction), which has helped powerful countries in curtailing the immunity of such rogue nations by formalizing their special status in legislation and depriving such states of their sovereignty and international rights such as no intervention of other states in their political affairs, and with NSS (national security strategy,2002) they have been made a subject of anticipatory self-defense (Walter, 2004). Similarly, some individuals are accused of spreading terrorism and terrorists or unlawful combatants stripped of rights which they would have had under humanitarian law and other human rights (Aldrich, 2002).
The US has a habit of showing reluctance in signing or ratifying multilateral treaties. This is becoming more and more prevalent in the US today. The US has rejected the Biodiversity treaty, the Comprehensive Test Ban Treaty, the Convention on Landmines, the Statute of the International Criminal Court, and the Kyoto Protocol among others- it has become ordinary to indicate a specific the US unwillingness to go in multilateral conventions. same unwillingness seems even more pronounced in examination in comparison to other nations, and specifically with the allies of United States. Post-World War II, the US has participated in only 65 percent of the deals kept with the UN Secretary-General which has been endorsed by more than 50% of countries. Whereas, the other nations adhere to a mean of 79 percent of these settlements and the rest of the parties from the G-8 to 93 percent for the same. Be that as it may, at present is still ambiguous whether this trend is increasing now or has increased since the finish of the Cold War or whether it is a part of a policies that began in 1945 or even earlier. However, US protection from multilateral deals shows itself not only by total repudiation but also by other ways of approaching to restrict the commitments spilling out of them, especially with regular application of reservations. US reserves are mostly so broad to meet contractual commitments irrelevant and both the nations governed by treaty and western allies have brought up genuine criticisms against them. However, the act of reservation is so paramount to the US that their senate encourages the President not to accept any settlement arrangements debarring them; and whether the treaty indeed contains such an agreement as to the ICC statute and Landmine Convention of which the US has refused to become a party. The treaty governed states are progressively unwilling to acknowledge the exclusive stance of the United States and they are not just disregarding reservations, but also refusing to entertain applications from the US to give explicit immunity. For a while where the comparatively egalitarian multinational procedure creates a lot of impediment, the US frequently determines to leave completely or if necessary, refers to bilateral agreements to correct the end result, as it has concerning the International Criminal Court. Such an approach of the US is not necessarily the result of its predominant place: The United States’ reluctance to adhere to International conventions has powerful cultural source, goes down to the 18th century when the nation was as yet weak and is reflected in the high obstacles posed by the US. Constitution for ratifying treaties. Still, these obstacles must be reduced for the deals that are considered positive- particularly those of an economic character that is normally finished up as executive agreements. And, as a matter of fact, treaties that reflect or support US predominance, while those involving more critical requirements fail, demonstrates that social factors have only a limited role.
Breaking and evading treaties isn’t a new thing for the US, mercurial behavior towards international law is an old US tradition. Currently, the US is indeed one of the countries to have signed the least number of international human rights treaties, out of the 18 conventions approved by the UN, America has just ratified five. As stated by archives of US national more than 350 treaties were signed and ratified between the Native American Tribes and the US between 1772 to 1867, and in most US failed to act per the treaties and violated them. There are many cases where the US allegedly violated or evaded or refused to sign and ratify treaties. For a treaty to be enforceable in the US there has to be the consent of both the executive branch and the senate. Even if a treaty is negotiated and signed by the president, the advice and consent of two-thirds of the senates have to be taken for ratification of the treaty, which makes it harder to ratify a treaty and easier to escape the obligation of such treaties, for instance in Treaty of Versailles, 1919 which was signed but never ratified by the US, International Labor Convention which was signed by 154 states including the US but the ratification of a treaty is still pending, Geneva convention (1954) took place between France, China, USSR, Vietnam, UK, and the US, however, the US took active participation in the negotiations and meeting they refused to sign the treaty, Comprehensive Nuclear Test Ban Treaty, 1996 ratified by 166 nations but didn’t come into force due to 8 dominant states that refused to ratify the same including the US and there are several more treaties which are pending ratification before US senate (Merelli, 2018).
My paper focuses on the interaction of the US with international law and how it uses its unipolarity and dominance to violate and evade international law in plain sight without any consequences, with particular focus on the international law violated in the 2003 war on Iraq and evasion of international humanitarian laws and conventions like Geneva Convention by unlawfully torturing the detainees who were labeled as ‘unlawful combatants’, therefore stripping them of their rights, by the Bush Administration after 9/11.
ILLEGALITY OF IRAQ WAR (2003)
The question persists, whether the decision of going to war with Iraq by the US and its allies was the only recourse and was it lawful. The main concern here is whether the use of force against Iraq was legal or not, for that we need to understand what is the stand of international law and the previous precedents over such use of force over other nations and what is stated in The Charter Of United Nation on the general prohibition of the use of force in international relation (SIMPSON, 2008). In The Charter Of United Nation (1945) chapter I: purposes and principles article 2(4) state that, “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or any other manner inconsistent with the Purposes of the United Nations” it states a peremptory norm of international law that is backed by the precedent of ICJ (international court of justice), in Nicaragua case. Notwithstanding the common justifications given by countries for lawful intervention for various genial reasons, there are only two exceptions for the justification of the use of force which is widely accepted to persist in international law and mentioned in The Charter of United Nation.
The first exception that state has against the prohibition to use force is ‘self -defense’ as mentioned in Article 51 of The Charter Of United Nation, “Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defense shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security”, situations or conditions which engenders the right of self-defense are arguable and different state and different interpretations and approach towards this right but it is an universally accepted right, but what imminence it requires or what are the situations where this exception is available, argument continues on this till date, although the word ‘armed attack’ is defined by the ICJ in The Republic of Nicaragua v. The United States of America (1986) as, “(1) action by regular State armed forces across an international border; (2) armed groups, irregular forces and mercenaries when (a) they are sent by or on behalf of a State to carry out an armed attack against another State and (b) the attack is of such gravity so that it amounts to an armed attack if it was conducted by regular armed forces of a State”.
The second exception for the prohibition of the use of force requires authorization from United Nation Security Council as stated under chapter VII article 42 of the charter which says, “Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations”. In this article, an enforcement power is provided to the security council in which the security council has to take action by making its own forces available to member countries in time of need per The Charter of United Nation article 43. But what happens when such forces are not made available to the security council to counter the issue or there is any delay in deploying the armed forces by the council, in such cases to overcome this the council used the policy of ‘delegation of enforcement action’, in which power to use force is delegated over a particular state or states, after taking the prior authorization of the council as per the provisions of Chapter VII of the charter(blokker, 2000).
After the war on Iraq exception of intervention on humanitarian bases rose, to use the force to save the foreign population from violation of their human right, but this isn’t a strong argument to give against the use of force on another state and cannot be considered a valid exception (Anton, 2013).
‘Coalition of wiling’, United States, United Kingdom, and Australia each of them had different justifications for the war on Iraq. All the above exceptions were used by each of them at different stages.
JUSTIFICATION GIVEN BY ‘US’
The United States argument was that the terrorists attack such as of nine-eleven brought a major change in the circumstances which the Bush administration called “A different kind of war against a different kind of enemy” and thus backing there new and aggressive law, and this view was supported by the then prime minister of Australia ‘John Winston Howard’. In modern circumstances, there should be the change in the prohibition of the use of force doctrine against the nations which are supporting terrorism or aiding and harboring them, and this change was called Bush doctrine of preemptive self-defense which is coded in NSS (National Security Strategy) of the United States part V. Justification of preemptive attack was only given by the US, no other state that provided military aid used the point of preemptive self-defense, on the contrary, most of the states apprised against the use of such extension of self-defense right as it can be a big threat to international peace. However, the argument for self-defense was right away questioned, countries such as Russia, France, china, and Germany stated that for such preemptive strike the threat should be of impending nature, which was not the case in the US strike on Iraq as there was no threat of war by Iraq on the US, which was confirmed by the reports of UK intelligence that the US didn’t face any impending threat by Iraq. The US needed to show a strong imminent threat to rely their case on and thus In compliance with that opinion, the US demanded the right to take preventive measures against Iraq by giving the reason of production of WMD’s(weapon of mass destruction) by Iraq as said by the preamble of “Authorization for Use of Military Force Against Iraq Resolution of 2002”, says “(1) strictly enforce through the United Nations Security Council all relevant Security Council resolutions regarding Iraq; and (2) obtain prompt and decisive action by the Security Council to ensure that Iraq abandons its strategy of delay, evasion, and noncompliance and promptly and strictly complies with all relevant Security Council resolutions.
Authorizes the President to use the U.S. armed forces to (1) defend U.S. national security against the continuing threat posed by Iraq, and (2) enforce all relevant Security Council resolutions regarding Iraq. Directs the President, before or as soon as possible (but no later than 48 hours) after exercising such authority, to make available to the Speaker of the House of Representatives and the President pro tempore of the Senate his determination that: (1) reliance on further diplomatic or peaceful means alone will not achieve the above purposes; and (2) acting pursuant to this joint resolution is consistent with the United States and other countries continuing to take necessary actions against international terrorists and terrorist organizations, including those who planned, authorized, committed, or aided the terrorist attacks of September 11, 2001. Declares that this section is intended to constitute specific statutory authorization for use of the armed forces, consistent with requirements of the War Powers Resolution”.
There are cases where international law has allowed the use of force in self-defense in case of “armed attack”, and even where there is the threat of imminent attack for example in the case of “The Caroline (Exchange of Diplomatic Notes between the United Kingdom of Great Britain and Ireland and the United States of America) where it was said that anticipatory self-defense is permissible when there is a ‘necessity of self-defense, instant, overwhelming, leaving no choice of means, and no moment for deliberation” (Jennings, 1938). But there was no such threat of impending nature by Iraq over the United States justifying their preemptive strike. Iraq one day might have attacked the US kind of argument cannot justify the armed attack over Iraq by the US. Such a kind of defense for a preemptive strike is a big threat to international peace and can have disastrous consequences. The doctrine of preemptive is uncertain and can cause chaos in international peace as it can be manipulated easily because there is no legitimate trigger point or a situation where such right can be made available thus making it open to interpretation by every nation according to their will.
OUTMANEUVRING THE RULES AGAINST TORTURE
“In the repercussions of the 9/11 bombards on the US, the Bush Administration apparently decided, to win the fight on dread, the United States must evade International Law” (barry and hirsh, May 24, 2004). “There was a preceding 9/11 and an after 9/11,” said Cofer Black, the previous head of the CIA’s counterterrorism division, with declaration to Congress. Gloves fell off post September 11. Primary public demonstration of a strategy to dodge customary rules of detention occurred in January 2002, when the US started sending people gathered during the equipped clash in Afghanistan to its maritime base at Guantánamo Bay, Cuba. At last, Guantánamo was to hold more than 720 prisoners from more than 40 nations, many of whom were captured from any contention zone. Guantánamo was intentionally chosen to try to put the prisoners out of the purview of the U.S. courts. “For sure, in light of a legal test by a few detainees, the U.S. government further contended that the courts of the US wouldn’t have locale over these prisoners regardless of whether they were being tormented or executed” as said in Gherebi v. Bush 9th Circuit, Dec. 18, 2003.
Disregarding the entrenched US military act of widespread use of the Geneva Conventions extensively, U.S. Secretary of Defense Donald H. Rumsfeld named the first prisoners to show up at Guantánamo on 11January,02, as “unlawful fighters,” naturally keeping their possible status as detainees from war. “Unlawful fighters have no rights under the Geneva Convention,” Rumsfeld said, “disregarding that the Geneva Conventions give special protection to all people caught in a global armed conflict, regardless of whether they are not qualified to POW status”. Rumsfeld flagged an easygoing perspective to deal with the U.S. consistency with International Law, stating the government would “generally, treat them in a way that is sensibly reliable with the Geneva Conventions, if applicable”. Rumsfeld on the February 7 scrutinized the pertinence of the Geneva Conventions to current U.S. military tasks: “The actuality is, the set of facts currently existing in Al Qaeda and the Taliban were not really the arrangement of realities that were viewed in drafting the Geneva Convention” as shown in Jim Garamone, Defense Link News (US Military), American Forces Press Service, February 7, 2002. Simultaneously, a progression of legitimate memoranda drafted in late 01 and mid-02 by the ministry of justice assisted them in the assembling of the substructure to avoid the limitations of International Law regarding the interrogation of prisoners. These reminders stated that the Geneva Convention didn’t put in prisoners from the Afghanistan’s taliban conflict. Alberto R. Gonzales, the White House counsel, in January 25, 2002 notice to President Bush, supported the Justice Department’s (and Rumfeld’s) perspective and called on the President to proclaim “the Taliban powers in Afghanistan just as Al-Qaeda outside the inclusion of the Geneva Conventions”. He said that “this would keep the U.S. “flexible” in the war opposition to terror”. Mr. Gonzales composed, the battle against terror, “in my opinion renders outdated Geneva’s exacting restrictions on interrogation of adversary detainees”. Gonzales likewise cautioned, the United States authorities using cruel interrogation procedures might be prosecuted for atrocities under the U.S. law if the treaties are followed. Gonzalez said, “it was difficult to predict with certainty how investigators can in the future apply the Geneva Conventions injuries against dignity and barbaric treatment and argued that pronouncing, the Taliban and Al- Qaeda was not protected by the Geneva Conventions considerably lessens the danger of domestic criminal prosecution” Gonzalez conveyed to President Bush the concern of the military leadership, these arrangements may “subvert U.S. military culture which insists on maintaining the best expectations of direct in battle and could introduce an element of uncertainty in the position of opponents.” The Gonzales reminder drew a solid complaint the following day from Secretary of State Colin L. Powell. Powell said “declaring the convention inadmissible would turn around longer than a hundred years of US strategy and application in keeping up with the Geneva Conventions and undermine the protection of the military rights of our soldiers in this particular conflict and in general”.
On 7 February, 2002, even with developing international condemnation, President Bush declared, the U.S. government would put in the “standards of the Third Geneva Convention” to capture Taliban terrorists, but wouldn’t treat them as prisoners of war in light of the fact, in the opinion of the United States, they didn’t meet the necessities of military force under this convention. Concerning caught Al-Qaeda members, he said, the U.S. government considered the Geneva Convention irrelevant but would continue to nurse the prisoners humanely. Essentially, these conclusions interpreted from the Geneva Conventions were to suit the Americas new torture policies. Belligerents in Afghanistan ought to have been treated as prisoners of war or not was up to a skillful court to decide, they aren’t qualified for prisoner of war ranking. The Taliban soldiers ought to have been agreed on prisoners of war status because they had fought openly on the military side of the Convention Party. Al Qaeda prisoners may not be granted prisoner of war status, however, the Conventions continue to give unequivocal protection to all those in a global or international armed conflict, even if they don’t get the status of prisoner of war. This assurance incorporates the right not to be subjected to coercive cross-examination, to get a reasonable preliminary whenever accused of a criminal act, and where there were civilian detainees, the possibility of a periodic security appeal to remain in custody. Notwithstanding, the Abu Ghraib outrage broke out, Secretary Rumsfeld kept on being negligent in applying the Geneva Conventions. On May 5, 2004, he stated in televised questioner, “the Geneva Conventions do not fully apply to Iraq but were essential standards for taking care of prisoners as stated in United States Department of Defense News Transcript”, Secretary Rumsfeld Interview with Matt Lauer NBC. Visiting Abu Ghraib on May 14, Rumsfeld observed: “Geneva doesn’t state what you do and when you get up in the first part of the day.” The US military has gone to great lengths to ensure, the Geneva Convention was fully implemented by military men on the ground. Different U.S. military guidelines and operational manuals give the way to actualizing Geneva Convention arrangements, even when the rules are unclear. Choices by foreign and ICC and the interpretation of standard international law give alternative intends to explain the requirements of the Convention of Geneva.
The Bush administration was publicly denying the reports of inhuman treatment against the detainees and condemned the practice of torture but refused to answer questions against any stress and duress techniques being used against such detainees, even when they were denying and condemning the use of torture or inhuman treatment on the prisoners of war, at the same time they were creating and finding a legal way to use the tactics of using the technique of stress and duress. The bureaucrats of bush administration authorized methods and techniques of torture such as deprivation of food, water, and sleep by using extreme loud sounds and lights to the point of complete unconsciousness, keeping them in small boxes for weeks, water boarding, etc.
The Central Intelligence Agency of the US has admitted to waterboarding three terrorists alleged of being involved in the 9/11 attacks. Many prisoners died in this inhuman and immoral treatment by the US military by using these enhanced techniques of torture, which were said to be suicides were actually homicides under this new enhanced technique of torture. All the videotapes and shreds of evidence of torture were destroyed.
The US finding way around the Geneva conventions or evading laws against torture and trying to justify their actions doesn’t matter as what they did was a complete disregard of international law and was condemned by many countries as the way they manipulated and justified their reason could give other countries right to do the same under same justifications which can be a big threat to international peace.
International law cannot merely be seen as a puppet in hands hegemons and nor as equivalent of hegemonic states such as US. However, time to time the applicability of international law in practical world comes into question which proves that international isn’t strong enough within itself to enforce its norms over powerful countries and some laws can be manipulated and interpretated in such nature as defeating the main purpose and essence of that law for which it was created. In todays world powerful nations either refuse to enter into the treaties or evade and violate them according to their need with impunity. This misuse of international law challenges the equality of the sovereignty among different nations, and the gap of inequality keeps on increasing as the powerful countries take position above the law. This violation of international law is also big threat to international peace cause if one country is breaking law without any consequences it makes other countries think that why they should follow the law and can lead to chaos in global relations. Everybody should be equal before the law and any inequality could lead to disturbance in international law.
US today stands as a sole superpower in the world, but this nature of neglecting international law will have grave repercussions and will make the US an unreliable international partner. The domestic law structure of US which supersedes international law gives them easy way to not follow international law and thus being a powerful nation, both politically and economically helps them to evade international law without adverse consequences. The habit of US of backing off from treaties is having a negative effect on its credibility as an international partner, and also rising the question that if one country is backing off from treaties why should other nations follow such a treaty. International law is on way of becoming a soft and more liberal law which was not the intention behind making such laws, main reasons to make such laws was to bring equality, peace and harmony among the various nations but the unipolarity in the world has changed the scenario completely. Powerful countries are using their power to violate the sovereignty and intervene in the affairs of other countries thus increasing their political dominance. International law has to become more powerful so as such hegemons cannot take place over the law and the hegemons and weak nations can coexist peacefully.
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- See Gherebi v. Bush 9th Circuit, Dec. 18, 2003. The United States asserts the power “to do with [them] as it will, when it pleases, without any compliance with any rule of law of any kind, without permitting [them] to consult counsel, and without acknowledging any judicial forum in which its actions may be challenged. … Indeed, at oral argument, the government advised us that its position would be the same even if the claims were that it was engaging in acts of torture or that it was summarily executing the detainees. To our knowledge, prior to the current detention of prisoners at Guantánamo, the U.S. government has never before asserted such a grave and startling proposition. …a position so extreme that it raises the gravest concerns under both American and international law.”
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